Davidson County Chancellor Claudia Bonnyman today quashed subpoenas that John Jay Hooker might have used to force his critics to appear at his disciplinary hearing tomorrow. Hooker had been seeking to compel the testimony of several Supreme Court justices, other judges and former Attorney General Paul Summers in his effort to defend against charges of frivolous litigation and improper attacks on the judiciary. In her ruling, Bonnyman explained that Hooker had not proven that the witnesses could provide evidence useful to his defense. Read more in the Nashville Post

TODAY'S OPINIONSClick on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

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In this action for damages allegedly due to water runoff from construction for a new school, the Trial Court granted defendants summary judgment. On appeal, we conclude there are disputed issues of material fact, and remand and vacate the summary judgment.

Patient filed a complaint against Doctors, OB/GYN Group, and Hospital (together "Defendants") alleging medical malpractice for failing to obtain informed consent and failing
to properly care for Patient during and after her hospitalization. The trial court granted summary judgment in favor of the defendants on the grounds that Patient failed to provide a competent medical expert as required by T.C.A. section 29-25-115 (Supp. 2006). Patient appeals.
We affirm.

An inmate filed a petition for a common law writ of certiorari, alleging that the Board of Paroles acted arbitrarily and illegally in denying parole. The chancery court dismissed the petition for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. The inmate appealed. We affirm.

Landowners brought action against adjacent neighbors to establish boundary line. Following a bench trial, the court held that each side is entitled to approximately half of the disputed area. Landowners appeal from the trial court's resolution of the boundary dispute. The neighbors agree with landowners' assertion that the evidence does not support the line found by the trial court. The judgment of the trial court is vacated. This case is remanded for further proceedings.

In this dispute over child support owing by the father, the Trial Court ordered child support ended on the grounds the child turned 18 and his high school class had graduated, but ordered payments of back child support arrearage. On appeal, we affirm.

Steven Edward Anderson, Nashville, Tennessee, for the appellees, Premier Medical Group and Scott William McLain, M.D.

Judge: CLEMENT

In this medical malpractice action against a treating physician, his medical group, and several hospital entities, the plaintiffs contend the trial court erred by including in the jury instructions the defense of superseding cause requested by the treating physician and his medical group. The plaintiffs argue the evidence was insufficient to justify the instruction. It is proper to charge the law upon an issue of fact within the scope of the pleadings upon which there is material evidence sufficient to sustain a verdict. The record contains material evidence regarding each of the essential elements of the defense of superseding cause sufficient to sustain a verdict of superseding cause;
therefore, an instruction as to superseding cause was appropriate.

Anne C. Martin and Susan High-McAuley, Hendersonville, Tennessee, for the appellee, North
American Galvanizing.

Judge: Bennett

This is an appeal challenging the issuance of several permits to North American Galvanizing Company by the Air Pollution Division of the Metropolitan Department of Health. Appellants base their challenge on the failure of the Department to consider the location of the company as well as noise and exhaust fumes arising from truck traffic traveling through a residential neighborhood to and from the company. They also challenge the representation of both the Department and the Board of Health by Metropolitan Department of Law attorneys. The Chancellor ruled against the appellants. We affirm.

William A. Kennedy, Assistant Public Defender, for the appellant, Clifton Dechance Harrison.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and J. Lewis Combs and William Harper, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Clifton Dechance Harrison, pleaded guilty to three counts of selling cocaine within 1,000 feet of a school, Class B felonies, see T.C.A. section 39-17-417(a)(3), -432(b) (2003); three counts of selling more than .5 grams of cocaine, Class B felonies, see id. section 39-17-417(a)(3), (c)(1); and one count of selling cocaine, a Class C felony, see id. section 39-17-417(a)(3), (c)(2). Pursuant to a plea
agreement with the State, the defendant received an effective sentence of 20 years. In this appeal, the defendant challenges the trial court's denial of alternative sentencing, and we affirm. The case must be remanded to the trial court, however, for correction of numerous errors in the judgments.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Greg Gilbert, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Carl Johnson, appeals the order of the Shelby County Criminal Court denying his petition for post-conviction relief. Johnson, who was convicted of especially aggravated robbery, is currently serving a sentence of twenty-five years in the Department of Correction. Following the affirmance of his conviction on direct appeal, Johnson filed a petition for post-conviction relief alleging numerous instances of ineffective assistance of counsel, which was denied. On appeal, this court remanded the case for an evidentiary hearing 'solely on the petitioner's complaint of the ineffective assistance of counsel regarding lesser-included offense instructions and Owens." Following an evidentiary hearing, during which Johnson challenged only trial counsel's failure to request that aggravated assault be charged as a lesser-included offense of especially aggravated robbery, the post-conviction court again denied relief finding that trial counsel was not ineffective for failing to request the lesser charge. In the instant appeal, Johnson challenges the denial of relief. Following a review of the record and the law applicable at the time of trial, we find no reversible
error and affirm the denial of post-conviction relief.

Following a change of venire, a Davidson County jury convicted the appellant, Marlon Duane Kiser, in the Hamilton County Criminal Court of first degree premeditated murder and two counts of first degree felony murder. After a sentencing hearing, the jury found that the State had proved the following aggravating circumstance: The murder was committed against a law enforcement officer engaged in the performance of official duties, and the appellant knew or reasonably should have
known that such victim was a law enforcement officer engaged in the performance of official duties. See Tenn. Code Ann. section 39-13-204(i)(9). Upon further finding that the aggravating circumstance outweighed any mitigating circumstances beyond a reasonable doubt, the jury sentenced the appellant to death for each conviction. On appeal, the appellant claims that (1) his right to an
impartial jury was violated by the trial court's failure to excuse incompetent jurors for cause; (2) the trial court erred by refusing to excuse for cause jurors who would not consider mitigating evidence; (3) the prosecution used peremptory challenges to excuse jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986); (4) the trial court erred by failing to a hold a pretrial hearing
on the admissibility of proposed expert scientific testimony; (5) the evidence is insufficient to support the convictions; (6) the trial court erred by permitting testimony regarding statements made by the appellant regarding his alleged hostility toward police and willingness to kill; (7) the trial
court erred by limiting the appellant's proof; (8) the trial court erred by excluding evidence of another person's alleged confession to the victim's murder; (9) the jury instructions on "reasonable doubt" were unconstitutional; (10) the appellant's waiver of rights at the sentencing hearing was unconstitutional; (11) the trial court erroneously denied the appellant's requested instruction on
residual doubt; (12) the jury was required to unanimously agree to a life sentence in violation of established case law; (13) Tennessee Rule of Criminal Procedure 12.3(b) violates principles of due process and the principles announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348
(2000), and its progeny; (14) the prosecution is vested with unlimited discretion as to whether to seek the death penalty; (15) the death penalty was imposed in a discriminatory manner; (16) the cumulative effect of the errors at trial violated his due process rights; (17) the statutory capital sentencing scheme in this state fails to articulate or apply meaningful standards for proportionality
review in violation of his due process rights; and (18) lethal injection constitutes cruel and unusual punishment and is unconstitutional in this state. Upon review of the record and the parties briefs, we conclude that the appellant is not entitled to relief and affirm the judgments of conviction but remand the case to the trial court in order for the court to enter only one judgment of conviction for first degree murder.

A new survey by the National Association of Women Lawyers shows "slow progress" for women in the upper echelons of big law firms. The National Survey on Retention and Promotion of Women in Law Firms found that only 16 percent of equity partners at large law firms are women, and that they earn almost $90, 000 less than their male counterparts -- a disparity that has increased from last year.

High-profile Mississippi lawyer Richard "Dickie" Scruggs has been charged with conspiring to pay a judge $50,000 to resolve a fee dispute in favor of his law firm. Scruggs is well known for handling tobacco litigation for the state of Mississippi and for suing State Farm on behalf of Hurricane Katrina victims. There are conflicting reports on whether Scruggs will continue representing Katrina victims, the Wall Street Journal Law Blog reports.

The Memphis Daily News today ran an interview with Stacie Winkler, new president of Memphis Bar Association's Young Lawyers Division, and highlighted the division's programs and projects. Winkler, an attorney with Thomason, Hendrix, Harvey, Johnson & Mitchell PLLC, said one of her goals is to increase activism among the 500-member group.

With scores of attorneys poised to assume senior status, ditching mandatory retirement policies is growing in popularity. But such a move would require firms to develop a system for evaluating and rewarding older lawyers based on their contributions -- and that might prove difficult. The National Law Journal looks at the issue.

Patrick J. Leahy, D-VT., chairman of the U.S. Senate Judiciary Committee, today rejected
White House claims of executive privilege and immunity for documents and testimony related to the firings of U.S. attorneys last year. The committee had issued subpoenas for documents and the testimony of four individuals. Leahy's move clears the way for a contempt vote by the committee, reports CQ Today.

Branham's pro bono work publicized

Attorney Andrew C. Branham, executive director of the Memphis office of Counsel on Call, is the subject of a profile piece in the Memphis Daily News today. Branham recently was honored by the TBA, and separately by the board of governors of the Legal Services Corporation, for his pro bono work and leadership on access to justice issues.

State Senate Republicans want to make another run at shortening the legislative session, recommending that the legislature wrap up by April 9. Complicating that time frame is the fact that many lawmakers want to have final revenue projections in hand before passing the annual state budget, and that information is not available until May. But 2008 is an election year, and even Democrat leaders would like to see an April finish, reports the Memphis Daily News.

Supreme Court Report

Court takes up regulation of shipping companies

The court yesterday considered whether federal law bars the state of Maine from imposing handling requirements on delivery companies who ship cigarettes purchased online. The issue arose when Maine officials tried to crack down on Internet tobacco sales to minors.

Attorneys who won the Open Meetings Act lawsuit against the Knox County Commission this fall are concerned that commissioners could be violating a court order by deliberating through intermediaries out of the public view. Allegations have surfaced that commissioners are communicating with each other through lobbyists and friends. The court ruling prohibiting private deliberations imposes a $50 fine and 10 days in jail for future violations of the law but does not address the use of intermediaries.

A select group of Tennessee attorneys will soon experience the honor of being admitted to practice before the United States Supreme Court in a private swearing-in ceremony at the 24rd Annual TBA Academy. This year's Academy is scheduled for Jan. 21-23, with the ceremony to take place before the court on Jan. 22. Join TBA President Marcy Eason and other leaders in the Tennessee legal community in this exciting program. Contact TBA CLE Director Therese Byrne at (800) 899-6993 or by email to learn more.

TBA Member Services

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